The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues. The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect.

At the outset, this strikes me as a futile gesture. 100,000 downloads occurred before the takedown was ordered. Foreign websites such as Pirate Bay have the files and are making them available. The horse isn't just out of the barn--it's left the farm. Moreover, I'm not sure what the legal basis for this order (or "request)" is. Is it clear that the possession or manufacture of a plastic gun is unlawful? Legislation has been introduced in Congress to ban 3D printed guns, which suggests that currently they are not banned. If it is legal to own one, then why it is illegal to tell others how to produce their own?

Moreover, there could be a Second Amendment question lurking here. Suppose I have a disability that makes shooting a gun difficult. Still, I want one to protect my home. 3D printing would (in theory) let me design a gun that is customized such that I could fire it. Do I have a fundamental right to do that? Would a total ban on 3D printed guns place an unreasonable restriction on me?

The 2A claim sounds like an as applied challenge that can be addressed in various ways, including requiring guns to be created by authorized dealers and compelling interests overriding such a claimed right to dangerous weapons that Heller says can be banned.

Also, note the breadth of support for this particular ban, Cheney himself coming around from a previous opposition (he was one of the few people voting against the ban). http://www.nytimes.com/1988/05/11/us/house-vote-backs-a-plastic-gun-ban.html

So, this is one of many regulations that some stereoytpical "gun banners" aren't the only ones supporting.

The overall issue of 3D printing is an interesting technological concern with broad implications in many areas.

"Is it clear that the possession or manufacture of a plastic gun is unlawful?"

Actually, it's clear that it IS lawful. Depending on state law, of course, you can manufacture a gun for your own use, so long as you don't sell it. If you want to sell it you have to go through some rigamarole to obtain a serial number to put on it.

I think the real fear here is that 3D printing makes the futility of gun control just too obvious to bear. It's been futile all along, somebody with a pipe and a hack saw can make a zip gun that's just as good as this printed gun, and an enormous number of people either own or have access to the shop facilities needed to make firearms to the highest quality on the market.

Gerard, your "The blogging hiatus starts now. " is an old familiar refrain. I expect "violations," including on your honeymoon. Some advice from a long-married man: Don't take a 3D printer along on your honeymoon.

Notice, Shag, that you're analogizing printing a gun, a victimless act, to murder, a decidedly NOT victimless act.

Gun control, like all prohibitions of victimless conduct, is essentially futile, because law enforcement is fundamentally reliant, (In a free society, anyway!) on victims reporting crimes to the police. Where the conduct only involves people who want it to happen, nobody reports it to the police, and the police are hamstrung.

Of course, they typically don't give up, they just start resorting to law enforcement techniques with AREN'T suitable to a free society, like secret informants, widespread wiretapping, abusive conduct during searches. You see it in drug enforcement, you see it in gun control, and I guess it's soon to come to a 3D printer near you, when the government tries to take control over what you can print with one.

So Brett may be suggesting that Gerard should take a 3D printer on his honeymoon, especially if he honeymoons in Texas, in case he runs into Cody Wilson, law -student-anarchist. Maybe Gerard should avoid Texas - and South Carolina.

Maybe a remake of "The Graduate" is in order, as "plastic" (no, not credit cards) is the anarchist weapon of choice. Query: Did Justice Scalia specifically reference plastic weapons in his efforts by dicta in Heller to pre-empt the slippery slope argument?

Maybe someone should work on software for a 3D printer to make a "bobble-head" of Brett. That would not be lethal, unless from laughter.

I'm actually very interested in hearing our answer to joe's question, but perhaps in a different form. Are you opposed to laws that would provide some penalty to knowingly selling a gun to 1. a ten year old, 2. a mentally unfit person or 3. a felon?

What if a guy comes up to another guy and says "Man I hate my wife, I wish I had a gun so that I could kill her right now, hey, you've got guns, would you sell me one?" If the second guy sells him a gun and the first guy does something bad with it, should the second guy be penalized?

I think the idea is that joe's list are persons that we think are less an obvious potential public danger than my example, but not by much, and so some deterrent, or perhaps responsibility, should be attached to it. What do you think?

And for those disagreeing with Brett, can you not see some serious downsides to making the actions of many, many people currently into victim-less criminal offenses? The vast majority of people who own, say, handguns, or high capacity magazines, or even 'assault weapons' would never commit a crime with them. By outlawing them we create a large class of victimless criminals...

The IRS came out and admitted that they targeted for audits any non-profits that had "tea party" or "patriot" in their name. I suppose in your world this had no political dimension. I would suggest that you not be an ass, but it's clearly too late.

"Are you opposed to laws that would provide some penalty to knowingly selling a gun to 1. a ten year old, 2. a mentally unfit person or 3. a felon?"

At the state level only,,

1. Not particularly opposed, if we make an exception for emancipated minors.

2. What does "mentally unfit" mean? If the definition involves objective criteria and a jury of your peers, protection comparable to a felony trial, no objection. If it licenses some dude to take away your civil rights on his own judgement, screw it.

3. If felonies were still especially serious crimes, I would not object to this. Considering that felonies range from homicide to forgetting to ditch your pocket knife before boarding a plane, again, screw it.

I thought name calling was Shag's department, though he uses cutesy names. The very article linked says:

"Lois G. Lerner, the IRS official who oversees tax-exempt groups, said the “absolutely inappropriate” actions by “front-line people” were not driven by partisan motives."

The NYT story notes:

Staff members at that office singled out the terms “Tea Party” and “patriot,” she said, but not out of political bias; it was “just their shortcut.” Only about a quarter of the 300 cases flagged for scrutiny were Tea Party-related, she said, but she called the singling out of those groups “absolutely inappropriate and not the way we should do things.”

We simply don't know all the details here and the suddenly influx of new groups along with changing political funding rules in 2010-12 does not to me warrant some clear-cut assumption of just what happened here.

I will repeat myself -- when I hear people on the left complaining about the Administration on drones etc., the idea that nothing wrong at all is said by whom? Each administration is likely to have some "scandal."

As to Mr. Whiskas, my concern is the extreme nature of Brett's comment where "gun control," which to him includes Manchin/Toomey Bill, addresses "victimless crimes."

I understand and respect the concern for some broad gun ban, which is simply unlike to pass. And, if it does, it would be at best prospective. But, gun regulations repeatedly are of not that caliber.

Why only the state level? Why is interstate commerce in guns not a concern of the feds, e.g.?

But, the answer is appreciated, since it underlines that Brett supports "gun control" -- certain people, with safeguards, are not allowed to get guns, certain limits on guns, certain "controls" are in place. This is in part because guns are not "victim less" even on the level of say pot or gambling.

Why only at the state level? Because I don't accept the tendentious definition of "interstate commerce" which has been developed to let Congress regulate everything. Congress has the authority to regulate actual instances of commerce which cross certain specified boundaries. Not everything which under hypothetical situations might have some slight "effect" on commerce which happens to occur in more than one state. Which is what 'interstate commerce' is currently taken to 'mean'.

However, Congress DOES have the authority to regulate as though it were a state is certain carefully defined places. D.C., non-state territories, land purchased with the permission of a state legislature... In those constitutionally specified places, you may apply my opinion of what states can do to the federal government as well.

"This is in part because guns are not "victim less" even on the level of say pot or gambling."

No, guns are inanimate objects, they are as victimless as knives, potatoes, sofas. They just sort of sit there doing nothing, on their own. Some of the acts people may engage in with them can generate victims, and those acts are as subject to the general police authority as similarly victimizing acts with baseball bats or tire irons would be.

I take gun ownership, and the incidents of it such as manufacture, sale, storage, practice, to be as subject to the general police authority (Which, with the noted exceptions, the federal government lacks.) as, say, printing presses. For legal purposes, substituted "printing press" for "gun" in any argument, and the conclusion should be the same: Just as the 1st amendment does not preclude making it illegal to hit somebody over the head with a printing press, it doesn't preclude making it illegal to shoot someone, but you can't use the illegality of hitting somebody with a printing press as a basis for depriving people of them, or restrictively regulating features which have non-abusive applications.

Minors and the genuinely incompetent lack full expression of many civil liberties, not just gun ownership. The fifth amendment, of course, makes it clear that you CAN lose civil liberties via due process: "nor be deprived of life, liberty, or property, without due process of law". But as I noted, while this has traditionally been restricted to felonies, indeed the usual distinction between felonies and misdemeanors has been whether a loss of civil liberties can result, the class of "felonies" has been bloated with acts of an absurdly trivial nature, so one can no longer justly say that "felonies" taken as an undifferentiated class should have any particular consequences. Indeed, it is an outrage that many acts nominally 'felonies' are illegal at all.

I want gun ownership to be treated as the real, full, civil liberty it clearly is made by the 2nd amendment, and I want all civil liberties to be treated seriously, not to be stripped of people for acts of a trivial nature, or through process only nominally due such a serious thing.

Brett, the long self-declared Second Amendment absolutist, is starting to show cracks on gun control. Perhaps Brett is somewhat receptive to Justice Scalia's pre-emptive slippery slope challenge dicta in Heller, some of such dicta that includes, per Wikipedia::

"In regard to the scope of the right, the Court wrote, in an obiter dictum, 'Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'"

Regarding limitations on minors, Brett sees no reason to limit "emancipated minors." Of course unemancipated minors have a right to self-defense; but perhaps they lack the intellect for understanding the role of guns in our society, despite or because of computer games available to them. Besides, an unemancipated minor child, such as a 4-year old can apparently rely upon his/her parents who can, according to Brett, not be limited in the number of handguns and certain other arms in their arsenal to provide self-defense in the home. Hopefully such parents will take steps to avoid misuse of their arsenal by their 4-year old that might result in serious injury or death to him/her, the parents and perhaps neighbors. [Note: In Newtown, a 20 year old had access to his mother's arsenal.]

As to convicted felons, Brett seems to see the need for a scale of really, really serious felony convictions, before limiting their access to guns under the Second Amendment. Query whether spousal abuse injunctions/convictions are serious enough in Brett's mind? Of course even felons have a right to self-defense, especially in their homes. [Note: So far in Heller and McDonald SCOTUS has acted only on handguns in the home on the basis of the individual right of self-defense under the Second Amendment. Consider that under FL's "Stand Your Ground" statutory redefining of self-defense, two drug dealers who are armed may get involved in a turf battle with the turfor killing the turfee in self-defense, or vice versa.]

More to come on Brett's take on the meaning of "mentally unfit" under Scalia's dicta.

Shag, I am no more or less absolutist about the 2nd amendment, than I am about the rest of the Constitution: Any civil liberty may be regulated under the general police power, to the extent it is exercised in a fashion which directly harms others. As I said, freedom of the Press does not cover beating somebody over the head with a printing press.

It does, however, cover telling somebody how to go about beating somebody; The Anarchists' Cookbook, the five volume "How to Kill" series from Paladin Press, are protected by the 1st amendment, and so, I think, is the distribution of these files. I see no relevant difference between a CNC file and a book on how to make the same thing.

The act of printing the gun, OTOH, would fall under the 2nd amendment.

Finally, it is properly up to a jury of one's peers to determine whether a crime is of sufficient magnitude to justify depriving you of a civil liberty. If the government chooses not to afford you that jury trial, they've made the determination in the negative by default, but the deprivation really ought to arise in the sentencing phase.

You, OTOH, are doubtless quite comfortable with depriving somebody of their civil liberties because they forget to leave their pocket knife at home before departing on an airplane trip, to name but one trivial "felony".

The First Amendment Speech/Press clauses may prohibit censorship, permitting one to "shoot off his mouth" subject to consequences later, such as libel, etc. Perhaps Brett's view on the Second Amendment is similar: don't prevent anyone from getting a gat subject to consequences later, such as homicides.

Both Heller and McDonald limit the "civil rights" aspects of the Second Amendment to handguns in the home, subject to Scalia's dicta limitations in Heller (and blessed in McDonald). Brett's many comments at this and other blogs on the Second Amendment and gun control go well beyond Heller and McDonald.

More later on the meaning of "mentally unfit" noted by Brett, including social media and blog statements as possibly suggestive of a state of mind of a person. [Blog statements may differ somewhat from social media, but some volunteer on blogs personal information that might involve state of mind and whether one is "mentally unfit" for purposes of Second Amendment limitations per Scalia's dicta. Note how AFTER an atrocity, including the Boston Marathon bombings, Newtown, Aurora, Oklahoma bombing, etc, the authorities and the media focus on such. Should there be such a focus BEFORE in case of a background check for Second Amendment regulatory purposes? Or do "civil rights" justify shoot first and ask questions later"?]

Brett, what about the Internet and mails? Is that state area too? Alleged extremes in one direction should not be answered by them in the other direction.

These two examples are clear but interstate commerce of guns are a well known thing. In fact, it is so well known, that interstate travelers being protected is a subject of concern on the gun friendly side. That is, if Sen. Manchin is supposed to be not gun friendly.

A nuclear bomb by its lonesome might be "victimless" under that definition though even there guns have been known to malfunction or ammo to cause problems 'on its own.' Guns are not "victimless" because they are not just left there. They are actually used by people, at times incorrectly or by people w/o a right to have them.

There are differences between the 1st and 2nd Amendment. Young minors have the right to buy books. But, contra to your rhetoric, when pressed, show that you do support "gun control," that is you support various regulations, be it the state or feds, on guns, that 'control' their use in various ways.

You are correct that you are not an 'absolutist,' you just at times knee-jerk that way. As you recognize, "full civil liberties" are regulated. There are various regulations of speech. The are regulations of voting.

"2. What does 'mentally unfit' mean? If the definition involves objective criteria and a jury of your peers, protection comparable to a felony trial, no objection. If it licenses some dude to take away your civil rights on his own judgement, screw it."

and how a background check, especially a quick check, might function. Brett suggests there must be an adjudication of "mentally unfit" by a jury. Consider how long it takes to start and finish such an adjudication process, that might be precipitated by acts such as the Boston Marathon Bombers, Newtown, Aurora, Oklahoma bombing, etc. Brett would apparently wait until there is a big bite of the apple (shoot first ...) and then a long trial, or many investigations if the perp is killed. Determining who is "mentally unfit" is difficult, but due process does not always involve a full adjudication. Evidence may suffice for purposes of gun regulation: reasonableness. Consider a persons own statements on social media, including blogs, that might reflect whether he/she is "mentally unfit." This would be a "No-no" for the NRA and conservatives. But what about the victims and their families? There are Second Amendment insurrectionists out there, and anarchists with their 3D printers ready to make undetectable plastic guns.\

What about the victims of your "due process light"? All the people who get stripped of their rights for trivial reasons? Well, I guess they don't bother you, because you want people to be victimized in that way.

No, you're not bothered at all about all the people who plead guilty to misdemeanors in the past, only because paying the fine was cheaper than hiring a lawyer to contest the charge, and then, years later, suddenly got stripped of their rights after the fact when the Lautenberg amendment passed. Man, is that ever ripe for review, now that the Court has admitted it's a civil right they got taken away, not some privilege.

I thought the Supremes in Heller just expressly ruled that pistols are protected Second Amendment arms and that prohibitions of them violate the Constitution?

The "printed" pistols are the functional equivalent of of a poorly made single shot, wheel lock pistol. There are literally thousands of publications discussing how to build your own firearms which are far superior to this novelty.

It is telling that the first knee jerk reaction of the authoritarians who infest our government was to ban the new "printed" pistol.

I actually agree with Bart that the alarm over the fuss over what is effectively the opposite of the high capacity, rapid fire firearms that gun control proponents tell us are the only real concern, and I agree with Brett that the expansive list of felonies today and the 'soft' science of mental illness are frightenly broad and/or not exact enough to be the basis for denying fundamental rights.

Having said that, I think Heller allows for this to be banned: it's certainly not a weapon commonly used by the law abiding.

By that reasoning every new model of gun could be banned the moment it was introduced, before it could be adopted widely. It is simply a single shot pistol, while not the most common choice of gun, scarcely unheard of.

I believe Heller simply established a default rule that, if a firearm is already in common use, it is presumptively beyond banning, no further analysis needed.

What about the right to trial by jury, is that such a minor matter to Shag?

I'm simply pointing out that, at the time many of these guilty pleas were entered, it was well understood that pleading guilty to a misdemeanor meant nothing more than a fine, it had no further consequences. To alter that after the fact to loss of a civil liberty?

Only people who don't like the civil liberty in question, and want people to lose it, could find that reasonable.

The right to trial by jury in criminal cases is an important right. Plea bargaining is a means of lessening such jury trials. There are problems with plea bargaining in providing fairness and justice, especially to indigent defendants who lack the funds to hire well qualified attorneys who do not have case overload as do many public defenders. Without plea bargaining, the justice system could take longer to resolve matters and at greater expense. Many defendants benefit from plea bargaining. Many defendants can be victims of plea bargaining where a well qualified lawyer might get a not guilty verdict. The justice system is not perfect.

Many spousal abusers are not brought to justice, with the result that more spousal abuse follows. Guns are frequently involved with spousal abuse. That is a Second Amendment regulation concern. So let me repeat:

Not when it actually happens. Which a guilty plea to avoid the cost of mounting a defense is scarcely real evidence of.

Guilty pleas are essential to the function of an out of control legal system, which would collapse under the burden of actually trying everybody it accuses of a crime. We'd be better off if they were abolished, and the legal system had to prove the guilt of everybody it wanted to convict.

But these are not traditional single shot weapons, they are weapons that are made mostly of plastic and which a printer creates...It's silly to think they are not new in some important sense. Heck, even their designers describe them as revolutionary.

"The Scalia test will have problems when the next generation of weapons comes out and the prohibitionists try to ban them at birth."

I can't agree more. It's a pretty silly test.

Shaq

Can you think of other rights that one loses for life upon a felony (or as has been pointed out, in some cases, a misdemeanor) conviction?

Mr. W: But these are not traditional single shot weapons, they are weapons that are made mostly of plastic and which a printer creates...It's silly to think they are not new in some important sense. Heck, even their designers describe them as revolutionary.

Glock made the first mass production "plastic" semi-auto pistols back in 1982 and hundreds of thousands are owned by law enforcement and civilians.

The only thing revolutionary about the "printer" pistol is how it was made. Functionally, it is crap.

BD: The Scalia test will have problems when the next generation of weapons comes out and the prohibitionists try to ban them at birth."

Mr. W: I can't agree more. It's a pretty silly test..

Scalia adopted the commonly owned by civilians test because the alternative and superior test based on the text was that all small arms suitable for militia service were protected and that would include real "assault weapons" like automatic M-16s and AK-47s. Scalia was not willing to go that far.

Yeah, the important thing to understand about Heller, is that it wasn't, on the Court, a debate between those who wanted to uphold the 2nd amendment, and those who wanted to erase it.

It was a debate between those who wanted to erase it, and those who were content to replace it with a less offensive to (some) modern sensibilities right. The 2nd amendment actually being upheld was never in the cards.

If the question had addressed murder, rape, home invasion, burglary, etc, would Brett have had a similar response? There seems to be something subjective, personal involved here, perhaps related to some of Brett's comments at other posts unrelated to this post. Spousal abuse, domestic abuse, is a serious problem. Perhaps Brett is suggesting that the abuser cops a plea to a lesser charge even though not guilty in the abuser's mind. The data on such abuse, and how it continues, with bad results is extensive. After the fact, earlier episodes of such abuse not properly addressed surface, indicating that unless addressed the abuse would not stop and would escalate. Weapons are often involved in such disputes. Police are limited in arrest powers without observation of the incident or clear signs of its aftermath. Police don't like to get involved in domestic disputes. The abused spouse may be cowed by terror from actually proceeding with a complaint. Should such abusers have access to weapons? Might spousal abuse indicate that the abuser is mentally unfit? Brett can continue to tip-toe on this - but it seems personal, not objective.

The reason I put it that way, is that nobody ends up with murder on their record due to pleading guilty because they'd rather pay a fine than lose wages attending a trial. But many people have, from long ago, "spousal abuse" on their record for precisely that reason.

The reason I put it that way, is that the standard of proof, and expectation of due process, is remarkably different between misdemeanor spousal abuse, and the sorts of acts which once rated the name, "felony".

Why, you can lose your right to keep and bear arms based on a simple restraining order, with no benefit of a real trial at all!

So is it personal and objective? There is some due process involved with a restraining order. Of course, restraining orders often work, but sometimes they don't, with more violence resulting.

In addition to spousal/domestic abuse, there is the abuse recently reported in the Armed Forces. There seems to be a violence of culture. Perhaps a study might be done on "GUNS, GENES AND GENDER: Violence and Angry White Men." Does the Second Amendment work to reduce that violence?

Our SALADISTA (FKA our yodeler) can read the mind of Justice Scalia in Heller apparently, with his indication that the true text of the Second Amendment should have permitted a right to military style arms and not just handguns in the home, presumably based upon the Second Amendment's introductory Militia clause. That's trying to have it both ways on the collective/individual right dichotomy. Perhaps if Scalia had his druthers, that might have been the result. But perhaps Scalia might have lost a majority with that. As for Scalia's dicta on potential Second Amendment limitations, my view is that he was attempting to pre-empt slippery slope argument, perhaps also to avoid losing a majority. That dicta has been out there for about 5 years (3 years in McDonald) and there has been much commentary, including comments at blogs such as this, but SCOTUS has not had a chance to follow up. Hopefully the Justices are following this commentary and realize that the slippery slope is real. Keep in mind that both Heller and McDonald were 5-4. SCOTUS will have to proceed with all deliberate speed to address violence that Heller and McDonald may lead to with the NRA and other gun yahoos.

BD: Scalia adopted the commonly owned by civilians test because the alternative and superior test based on the text was that all small arms suitable for militia service were protected and that would include real "assault weapons" like automatic M-16s and AK-47s. Scalia was not willing to go that far.

shag: That's trying to have it both ways on the collective/individual right dichotomy.

The collective rights fiction is that state governments enjoy the right to keep and bear arms.

In fact, the militia of that day and our is an armed citizenry suitable for being called up by the state or federal government for military duty.

The People's right to keep and bear arms ensured that armed citizenry is available for duty.

The fact that this is one of the reasons to protect the People's right to keep and bear arms suggests strongly that the protected arms should be suitable for military service.

Wouldn't it also suggest that the armed citizenry be subject to state regulation (the "well regulated" & militia part)? I would think that could cover things like safe storage laws, background checks, and other provisions (so long as they don't disarm the citizenry).

If the State of CO has a militia today within the meaning of the Second Amendment as our SALADISTA (FKA our yodeler) claims, I assume the State of CO maintains records of its members and of how such modern-day militia is well-regulated. Are the members of this modern-day State of CO militia volunteers or does the State of CO designate who shall be members and require them to purchase arms and well-regulates them by holding training sessions periodically, including checking their weapons to make sure they are functional. Presumably such current-day militia of the State of CO has arms of particular designations and not mere handguns, bows and arrows, dirks, etc. Perhaps a public records request is in order addressed to the Governor of CO, citing as authority the State of CO's illustrious constitutional scholar, our very own SALADISTA.

By the Bybee [expletives deleted], such modern-day State of CO militia might serve to protect CO's recreational pot users from interference by the Feds..

Brett might read E.J. Dionne's WaPo column today "Raising the political heat on opposition to gun control," especially the portion relating a domestic abuse restraining order and the "alleged abuser's" steps following the issuance of the order.

Mr. W: Wouldn't it also suggest that the armed citizenry be subject to state regulation (the "well regulated" & militia part)? I would think that could cover things like safe storage laws, background checks, and other provisions (so long as they don't disarm the citizenry).

Only to the extent of enacting rules of discipline under the Militia Clause.

Once again, well-regulated in the military context of the time simply meant disciplined.

The militia clause grants Congress the power to enact laws to discipline the militia when they are called into federal service and they enacted the UCMJ.

I said the states. And disciplined suggests rules and such, so I'm thinking that as long as the people are not disarmed rules that related to having a well regulated group of people that could be called forth to assist in times of rebellion and invasion should be allowed. For example, requiring gun owners to take safety and proficiency courses and pass them to own arms or certain safe storage rules at the least.

I have to wonder what restrictions places like Switzerland or Israel place on the keeping and bearing of the arms their citizen-soldiers keep. That kind of thing.

The states have a concurrent and subordinate power to discipline their militias when called to service, but not to abridge the fundamental individual right to keep and bear arms, which the Second Amendment guarantees against states as well as against Congress.

When the militia is called up for service, the state may tell the citizen soldier that he or she may only carry standardized government approved arms while on duty, but does not have the power to tell a citizen not on duty that he or she may not own and carry their protected personal arms.

Where do you get that from? If the militia=the people and their arms, then the state can regulate/discipline the people themselves (for example, they could recquire them to drill regularly or meet PT requirements), so why could they not regulate/discipline in certain ways their keeping/bearing of arms (as long, of course, as they don't infringe their right to keep and bear their own arms)? It seems to me that mandatory safety and/or proficiency training should be OK, as well as safe storage laws.

I'm not sure of the textual basis of your claim that the state's regulation of their militia only reaches to "when called into service" unless by that you mean that whenever the state would require anything militia related that would be an instance of being 'called into service.' It certainly can't mean that the state can only discipline militia when they are fighting an emergency; that would mean they could not drill them absent one and that would undercut the entire idea of a well regulated body...

Don't misunderstand me: under what I'm thinking of here I would think courts would have a duty to make sure that proposed 'regulations' are actually militia-related and not pretexts for traditional gun control measures.

In thinking about our discussion the following problem occurred to me: a seeming conflict between the right to keep and bear for the purpose of their being a citizen's militia and the right to keep and bear for the purpose of individual self defense.

IF the militia just was the citizens who brought their own firearms to muster, and so the Founders wanted to ensure the people had the right to have arms they could then use when mustered, then what happens when the firearm some citizens keep/bear is one the state or local militia finds to be less than useful or even counterproductive to the regulation of their militia (let's stipulate that they actually have a rational basis to oppose the firearm on militia related grounds, no pretexts)? What if they want everyone to be very proficient in, say, M-16s and they feel that keeping and bearing other arms only distracts from the imperative need for greater (or exclusive) familiarity with that arm. Could they distribute M-16's but bar the keeping and bearing of other arms? If they cannot then don't we get a situation in which the express textual purpose of the right finds itself subordinate to a non-textual one? And if yes, isn't that, well, odd?

Mr. W: If the militia=the people and their arms, then the state can regulate/discipline the people themselves (for example, they could recquire them to drill regularly or meet PT requirements), so why could they not regulate/discipline in certain ways their keeping/bearing of arms (as long, of course, as they don't infringe their right to keep and bear their own arms)?

The militia is the armed citizenry called to service and can be disciplined when formed.

Attempting to use the prefatory clause of the Second Amendment to argue that Congress and the states can impose military discipline on the civilian population merely because they can be called to duty as militia is a rather heavy lift.

I give you points for originality. I have never heard that argument before.

Can only be disciplined "when formed?" That can't mean only when called into action to fight an emergency, because that would mean no drilling.

If they could call regular drills I can't see why they can't prescribe certain activities apart from formal drills. Of course it would have to be at least rationally related to military needs and if it conflicted with other explicit constitutional provisions (for example, the exercise clause could not force religious pacifists to train in arms).

This is consistent with the Militia Act of 1792 which required males between a certain age to get certain arms and to regularly train.

"Could they distribute M-16's but bar the keeping and bearing of other arms?"

How exactly would barring the keeping and bearing of other arms contribute anything to the goal you cite, once the militia members had been armed with the firearms the government wanted, and required to train with them?

I think you're missing a key point here, in understanding the 2nd amendment: It is a right, and rights are not expressions of trust in government, they are intended to bar government wrongdoing. To understand any right, you need to understand what kind of wrongdoing it is meant to bar.

The founders thought that a well regulated militia was necessary to the security of a free state. But they were not at all confident that the people running a state would WANT it to be free! And so they wrote the 2nd amendment, to protect the militia against a government which wanted to foreclose the possibility of a militia being raised by disarming the people.

As I've suggested before, it's as though you were concerned that arsonists might take over the government, and set out to destroy the fire department under the guise of regulating it. So you guaranteed the right of people to own and train with firefighting equipment, so they could constitute a volunteer fire department in an emergency even if the government wanted everything to burn to the ground.

So, don't envision the government mandating M-16s for the militia, and barring random arms unsuited to the purpose. Envision the government mandating potato guns for the militia, and baring functional firearms precisely because they ARE suitable for militia duty.

Don't envision a government trying to do the right thing, envision one trying to do the wrong thing. Because that's what the Bill of Rights is all about, it would not exist were it not for the assumption the government might sometimes want to do wrong.

The download consists of 43 pages that include 26 pages of Footnotes on numerous law review articles on textualism. [The small typeface was a problem and at times required my use of a magnifying glass.] Most of the noted articles were published in the past decade. The goal of the author was not the merits of textualism; rather it was to point out what seem to be perhaps a hundred or more versions of textualism, described by various adjectives. The author obviously has a sense of humor in assembling these adjectives used by legal scholars. But one adjective that the author did not include was: "simple-minded" in describing textualism, which brings me to this recent statement by our SALADISTA (FKA our yodeler), who claims to be a textualist:

"Once again, well-regulated in the military context of the time simply meant disciplined."

This is simple-minded. The text of the Constitution does not define "Militia." Rather, one has to review extensive pre-Colonial, Colonial and Revolution history to understand the term "Militia" at the time of the Articles of Confederation, the Constitutional Convention culminating in the adoption of its Constitution in 1789, the adoption of the Bill of Rights in 1791, followed by the Militia Act of Congress shortly thereafter. Of course, the military history thereafter is relevant in evaluating the role of the Constitution's "Militia" references over the years since to the present.

Our SALADISTA focuses on citizen Militias, separate and apart from the Militia of a state (or subdivision thereof), waiting to be called by the State into action. Perhaps this is sort of like a dormant Commerce Clause, for a dormant Militia clause under the Second Amendment. Who are members of these citizen Militias unregulated by the State? What brings them together? What are they threatened by? Could they be insurrectionists-in-waiting? Are citizen Militias equal opportunity providing?

Going back to Colonial and post-Colonial days, the Militia fought against Native Americans who had long been here before European settlements. In the Slave Colonies/States, the Militia addressed actual or threatened insurrections of slaves (who had been brought there in chains). [Note: Our SALADISTA has forthrightly declared that slavery was malum in se even before the Civil War Amendments.] The Militia back in Colonial and post-Colonial days fought against people of color, both native born and those brought here in chains.

So what are the goals of our SALADISTA's citizen Militias today as they await being called by the State? Or will they wait?

"The founders thought that a well regulated militia was necessary to the security of a free state. But they were not at all confident that the people running a state would WANT it to be free! And so they wrote the 2nd amendment, to protect the militia against a government which wanted to foreclose the possibility of a militia being raised by disarming the people."

Brett, I'm pretty sure the 2nd Amendment did not originally apply to the states, so it wasn't codified to keep state governments from ruining or undermining the militia, but the feds (the "State" mentioned in the 2nd is the new Union, state run militia's were assumed when referencing the "militia").

Bart

Think of the Militia Act of 1792: it ordered citizens of a certain age to acquire certain arms for militia service. It certainly didn't "call up" the people to whom that applied to do that, they were supposed to do it to be prepared for when they were called up.

So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firarms training as well?

Shaq

To your list of groups the militia was used to suppress might be added radical anti-tax groups (Shay's Rebellion)...

While my objective was not to prepare a list of what Militias were used for, Mr. W's addition of Shay's Rebellion, might have us consider in our current day and age competing citizen Militias in a State, say the Mile Hight State (of mind) of CO, and there is a need for the State to call forth under the imprimatur of the State one of these citizen Militias to suppress one or more of the other citizen Militias. How can the State be sure that the citizen Militia it so calls upon is well-regulated? What steps - and in what timeframe - would the State have to appropriately take to assure its citizenry that the citizen Militia chosen is well-regulated? Maybe Gubernatorial candidate Tom-Tom Tancredo can campaign on citizen Militias with his mentee (our SALADISTA) as his advisor.

"So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firearms training as well?"

It could. The 2nd amendment was clearly consistent with the state setting a floor for gun ownership and familiarity. Just not setting a ceiling. Setting a ceiling could never further the cause of a well regulated militia, and had considerable potential for frustrating that cause.

The 2nd amendment was, of course, adopted to restrict federal wrongdoing. But it was modeled after state level protections, and NOW applies to the states thanks to the 14th amendment.

Shag, as I was pointing out back in the 90's, if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers.

"Setting a ceiling could never further the cause of a well regulated militia, and had considerable potential for frustrating that cause."

A state couldn't have a rational, military related idea that people keeping and bearing firearms other than the ones they wanted the people to be proficient in would be counterproductive to their regulation of their militia?

"if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers"

Or, as they did with the militia in 1787 (largely seen as the impetus for the Constitution and the Militia Act of 1782) they could call them out to crush these non-sanctioned militia...You have to watch original intent, it can come back on ya!

Mr. W: Think of the Militia Act of 1792: it ordered citizens of a certain age to acquire certain arms for militia service. It certainly didn't "call up" the people to whom that applied to do that, they were supposed to do it to be prepared for when they were called up.

So if service in the militia could require one to go out and get certain arms in order to be ready for drill, why couldn't it also require people to meet PT requirements or firarms training as well?

Ordering citizens of a certain age to acquire certain arms for militia service was almost certainly unconstitutional, widely ignored and eventually abandoned. I would not use this as a model to argue for further requirements on the civilian citizenry.

"PT and firearms training was conducted after the militia was formed."

It seems bizarre to say that they could have a drill twice a year in which they could compel PT and training but not require continuous PT and training. People can get pretty out of shape/practice between Spring and Fall, which could be a serious detriment to having a "well regulated militia."

But of course there is a way around this even if one were to concede your point: declare drills once a week all year rather than twice a year with PT and firearms training. Especially in this age of continuous war under the AUMF such a thing seems rational!

" ... as I was pointing out back in the 90's, if the government really wanted to deal with the militia movement, they had but to fully legitimize them, accept them as real militias, and assign their officers. "

would have led to unconditional surrender to anarchy, unless the officers assigned were correctional officers..

By the Bybee [expletives deleted], just where was Brett pointing this out back in the 90's? [I'm building a dossier.]

The theory borne out by the Revolution is that, while the militia is a joke when compared one-to-one with a professional army, it is extremely difficult to conquer a continental size country with an armed citizenry without an extremely large invasion force.

The British really had no chance of holding the colonies with the roughly 30,000 troops they sent. This is the number of police necessary to keep order in a largely peaceful large city. As soon as the British left an area, it reverted back to American control.

"A state couldn't have a rational, military related idea that people keeping and bearing firearms other than the ones they wanted the people to be proficient in would be counterproductive to their regulation of their militia?"

Amendments in the Bill of Rights exist to preclude actions the government might have some reason to undertake. What would be the point of an amendment barring some action the government would never, ever, want to undertake?

You think the government never has a rational reason to want to censor political speech? To conduct random searches without a warrent? Confiscate property without compensation?

I'll say it again: A bill of rights is not an expression of trust in government. It is a protection against a government that wants to do the wrong thing. You really have to be willing to conceive of a government deliberately setting out to do something it SHOULDN'T do, to understand any of the Amendments.

Don't think about what the government might reasonably want to do, that is handled in the form of powers. Think of how it might abuse power, that is the subject matter of a BIll of Rights.

How might the government abuse the power to tell people they can't own that weapon, can't train with it? Maybe they could reduce the militia to a small politically reliable group, with the general population disarmed, and so defenseless before it? The "select militia" the founders worried about?

THAT is why the power to arm the mililtia does not imply the power to tell people they can't own this, or train with that. Because it can be abused, and the founders were more concerned with the abuses it would enable, than any hypothetical beneifts that would be foregone.

"You really have to be willing to conceive of a government deliberately setting out to do something it SHOULDN'T do, to understand any of the Amendments."

But some of the Amendments are clearly meant to protect some government from other governmnent (think about the 10th or the 11th, or as many have argued what the 2nd was originally meant to do [protect state militias from the feds]), and I'm talking about those state and local governments.

"Don't think about what the government might reasonably want to do, that is handled in the form of powers. Think of how it might abuse power, that is the subject matter of a BIll of Rights."

Well, sort of. But the provisions also suggest all kinds of powers (think of the due process clause).

Remember in the thought experiment I'm suggesting the government would have to distribute weapons to all militia aged citizens and could never, ever, leave them without arms.

Right, that's why it says "right of the People", because it's all about state power. Yes, some people have argued that; They started arguing that right about the time the federal government decided that it DID want to infringe the right of the people, and needed some excuse about why it could.

In your thought experiment, the government might chose to distribute potato guns to everyone, and then mandate they not substitute actual firearms. Or, closer to the real world, give it's soldiers large magazines and selective fire weapons, while trying to prohibit both to the people.

And the 10th amendment refers to both the states AND the people, and treats them as distinct entities: "are reserved to the States respectively, or to the people."

They used the word "states" when they meant states. "the People" NEVER is reference to the states.

I don't disagree with the thrust of what you're saying. Yes the BoR is meant to hold back the government, I was simply saying that at times it holds back the feds to protect other governments which powers it recognizes (state) and even in its checks it recognizes government powers (the due process clause).

I'd also like to clarify something about my thought experiment: I agree that while the 2nd recognizes a state's militia rights in the prefatory clause it recognizes a distinct RKBA in the people themselves, and so what I've said is that the government could only bar keeping/bearing certain arms if it does not leave the populace without means to keep/bear arms. So I said that in the case of them wantint to maximize proficiency in a certain arm by barring keeping/bearing of others they would have to give the arm of choice to the people and a court would have power to review to ensure that the RKBA of the people is not infringed and that their be at least a rational military relationship of the policy. That would take care of the potato gun scenario.

I guess it comes down to what "shall not infringe" is taken to mean. I take it to mean something more than "shall not utterly obliterate", and think Tench Coxe probably had a better feel for the meaning of the 2nd amendment than Chuck Schumer.

Those like Sen. Manchin also think it means more than shall not obliterate. The guy you called some sort of traitor. So, that doesn't quite work. Chuck Schumer also is a lot easier to stereotype here than red state types who don't take your strident position on the subject.

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